Explanatory Memorandum to COM(2000)802-4 - European Maritime Safety Agency - Main contents
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| dossier | COM(2000)802-4 - European Maritime Safety Agency. |
|---|---|
| source | COM(2000)802  |
| date | 07-12-2000 |
The EU maritime safety and pollution prevention policy consists of a large number of legal measures which cover the key aspects of the IMO Conventions in force. The main objective is to ensure the efficient and uniform application of the international rules within the European Union. The policy embraces a wide variety of fields, from classification societies to Port State Control, from passenger ships to marine equipment and port reception facilities. With the establishment of an EU maritime safety and pollution prevention policy, some of the Member States' national competencies in these fields have been transferred to the Community level.
In order to be effective, such legislation must be applied in a proper and uniform manner throughout the Community. It is indeed the rigorous implementation of the existing rules which may enhance safety at sea and pollution prevention in the Community waters, and its harmonised application which may ensure a level playing field, reduce the distortion of competition resulting from the economic advantages enjoyed by non-complying ships and reward the serious maritime players.
In the Community, the task of ensuring the proper and convergent implementation of existing legislation is rendered more difficult by the fact that, unlike certain countries such as the USA which have a unitary structure and thus the ability to impose uniform procedures and to verify compliance, the European Union has to work with the diverse administrative traditions of its Member States. The administrative structures involved in maritime safety differ considerably from one Member State to another: some are civil, others are military and they perform very different tasks, from ship inspection as port State or flag State to fisheries protection, customs, combating drug trafficking or immigration controls.
It is for the reasons mentioned above that the Commission started to reflect on the different possibilities to enhance the current system. In its Communication of 21 March 2000 on the safety of the seaborne oil trade i, the Commission has already tackled this problem and suggested the possibility of creating a European Maritime Safety Agency. The Commission also explained that, in its opinion, it would be somewhat unrealistic, or at least very premature, to envisage setting up an integrated European operational structure or coastguard that would take over the role of the national maritime administrations. On the contrary, the Agency should support the actions of Member States and the Commission in applying Community legislation, monitoring its implementation and evaluating the effectiveness of the measures in force. The Agency should not be empowered to take decisions since it would be up to the Member States, and in particular the Commission in its capacity as executor or guardian of Community legislation, to perform the necessary follow-up.
The Commission reiterated this principle in its report for the Biarritz European Council on the Community's strategy for safety at sea i. In this document it is stated that, in order to help the Commission ensure that the efficient, harmonious implementation of the existing rules is monitored and checked within the European Union, the Commission is contemplating the creation of a specific structure which might take the form of a European Agency for Maritime Safety.
By means of the present Regulation, the Commission proposes the establishment of a European Maritime Safety Agency. The text of the proposal is the result of a long period of analysis and consultation during which the Commission had the possibility to clarify better what the role of the Agency might be. In addition to the primary objective of ensuring the proper implementation of existing legislation, the Commission considers that the Agency should play a major role in organising appropriate training activities on port and flag State related issues. Indeed, harmonising the training of the Member States' surveyors will help to ensure a uniform EU maritime safety system.
Furthermore, the Commission considers that the Agency can assist the Commission's services in carrying out the large number of time-consuming technical tasks imposed on it by the existing legislation. This will permit the Commission's services to concentrate on policy matters. Finally, another fundamental area of activity for the Agency is that related to the collection, recording and assessment of statistical data in the maritime safety field and on accidental or deliberate pollution at sea, the systematic exploitation of existing databases and, where appropriate, the development of supplementary databases. The data provided by the Agency will enable the Commission and the Member States to take the necessary measures to enhance safety at sea and to evaluate the effectiveness of the measures in place.
It is expected that the Agency will create a solid partnership with and between the Member States in so far as questions of general interest are concerned, that it will take full advantage of the Union's best scientific capabilities and that it will facilitate a quicker Community response and decision-making capacity. The structure of the proposed Agency respects the prerogatives of the Community institutions having the legislative power: the Agency will not interfere in this field. The Commission's prerogatives in terms of budgetary implementation and right of initiative are also respected. In addition to the work already undertaken in order to demonstrate the need for and decide in favour of creating the EMSA, the Commission will carry out, in parallel with the Institutions' discussions on this proposal, further work regarding a cost-benefit analysis.
Contents
- 2. The Community EMSA
- 2.1. The objective
- 2.2. The Agency
- 2.2.1. The tasks
- 2.2.2. Functioning
- b) Personnel
- c) Budget
- d) Language
- e) Location
- f) Transparency
- 3. The choice of the legal basis
- 4. Justification of the proposed measure
- Is the envisaged action solely the responsibility of the Community or is the responsibility shared with the Member States-
- What is the most efficient solution taking into account the resources of the Community and the Member States-
- What is the concrete added value of the action envisaged by the Community and what would be the cost of inaction-
- Is uniform legislation necessary or would a Directive, setting the general objectives and leaving the execution to the Member States, suffice-
- 5. Comments on articles
- Article 2
- Article 3
- Article 4
- Chapter II: Internal structure and functioning
- Article 6
- Article 7
- Article 8
- Article 9
- Article 10
- Article 11
- Article 12
- Article 13
- Article 14
- Article 15
- Article 16
- Article 17
- Article 18
- Chapter III - Financial Requirements
- Article 20
- Article 21
- Article 22
- Chapter IV - Final Provisions
- Article 24
- 6. Final considerations
The objective of the Regulation is to establish a European Maritime Safety Agency, with a view to ensuring a high, uniform and effective level of maritime safety and pollution prevention in the Community. The achievement of these objectives requires the creation of a specialised agency: the EU maritime community needs an efficient body that is able to provide the Member States and the Commission with the necessary technical and scientific support and a high level of expertise to properly apply the Community legislation in the field of maritime safety, monitor its implementation and evaluate the effectiveness of the measures in place. The existing legislation has a highly technical content. Its implementation, as well as its practical monitoring, should be performed by personnel that are highly qualified in the area of maritime safety, having both a comprehensive technical knowledge and being fully familiar with European and international maritime safety and pollution prevention regulations.
The Agency will be established as part of the Community system. It will represent the technical body providing the Community with the necessary means to act effectively to enhance overall maritime safety and pollution prevention standards. The Agency shall assist the Commission in the continuous process of updating Community legislation in the field of maritime safety and shall provide the necessary support to ensure the convergent and effective implementation of such legislation throughout the Community. In particular, the Agency shall be active in helping to strengthen the overall Community Port State Control regime and in helping to monitor those classification societies recognised at Community level. A wider description of the Agency's tasks is contained in the 'Comments on articles' section below.
a) Management bodies
The good functioning of the Agency requires that its Executive Director be left with a high degree of independence and flexibility as to the organisation of the internal functioning of the Agency. Therefore, the Executive Director is entrusted to take all necessary steps to ensure the proper accomplishment of the working programme of the Agency and, in particular, to decide on the implementation of the inspections of the classification societies as well as on the visits to the Member States. Furthermore, the Executive Director will also be responsible for the preparation and execution of the budget and the work programme of the Agency, and for all questions related to personnel.
In order to provide the Executive Director with the necessary legitimacy, it is preferred that he is appointed by the Administrative Board on a proposal from the Commission.
An Administrative Board consisting of representatives nominated by the Commission, the Council and the European Parliament as well as industry representatives, will be in charge of all administrative issues. It will adopt the work programme of the Agency, after approval from the Commission, and its budget at the beginning of the financial year and adapt it to the contributions and fees received. The Administrative Board will also establish procedures on how the Executive Director may take decisions and will exercise disciplinary authority over the high officials of the Agency. Decisions, other than those related to staff issues, which are made by the Executive Director and by the Administrative Board will be subject to appeal by the Commission.
For carrying out the tasks described above, the Agency needs to have a sufficient number of high-quality staff. The agency staff is to assist the Commission in ensuring that the Community legislation in the field of maritime safety and pollution prevention is kept up to date, as well as to ensure that it is applied in a uniform and effective manner. Qualified personnel shall also participate in the organisation of appropriate training activities for the Member States and for those States applying for accession. The number of staff the Agency might require is estimated at around 55 persons.
The personnel of the Agency will be subject to the Staff Regulations applicable to Officials of the European Communities and the Conditions of Employment of Other Servants. It is envisaged that only a small number of these will be seconded from the Community institutions on a temporary basis. The other personnel will be recruited on the basis of experience and merit. Without prejudice to the need to ensure a stable qualified staff in sufficient number, they will be hired on the basis of temporary renewable contracts so as to ensure a continuous renewal of personnel that are abreast of technological developments.
The Agency needs a budget allocation large enough to hire its personnel as described above, to carry out its tasks and to ensure its smooth and efficient functioning. For the first year this annual budget can be estimated at approximately EUR 2,625,000, increasing to approximately circa EUR 7,600,000 when the Agency is fully operational.
The Agency's budget will be mainly financed by a subsidy from the Community. The Agency may charge some fees for its publications or for the training activities. However, the amount of these fees will remain minor in respect of the total budget of the Agency.
The Agency must put in place an appropriate set of rules and controls. The Administrative Board will be entitled to adopt the necessary measures, but the Agency will ultimately be subject to the supervision of the Court of Auditors.
The language regime should allow the Agency to work in an efficient and swift manner. The Administrative Board of the Agency is entrusted to take a decision on the language regime of the Agency.
The Agency will need to be located in a convenient location that will also enable it to develop working relations with the appropriate Community institutions. Taking into account such requirements and after an evaluation of applications received, the Commission will propose to the competent authorities one or several locations. On the basis of such proposal, the competent authorities will have to define a location at the latest six months after the adoption of this Regulation.
The Agency will adopt its rules regarding transparency and access to documents in compliance with the decisions of the European Parliament and the Council, in the context of Article 255 of the EC Treaty.
The legal basis of the proposed Regulation is Article 80 paragraph 2, which is consistent with the objective of the proposal and with all the legislation adopted so far in the maritime field, particularly where safety and environmental protection are concerned.
What are the objectives of the planned action in relation to the obligations of the Community and what is the Community dimension of the problem (for instance how many Member States are involved and what solution has been adopted until now)-
The Treaty provides for the establishment of a common transport policy. The measures envisaged to implement such a policy include measures to improve safety in maritime transport as foreseen in Article 80 i.
To this end, the main objective of the planned action is to establish a European Maritime Safety Agency. At present, a large number of maritime safety legislative measures are in place in the Community. In order to ensure that this legislation is effective and that safety at sea and marine pollution prevention are enhanced throughout the Community, it is necessary to ensure that such legislation is applied in a uniform manner. The Agency is designed to assist in achieving this objective.
All Member States, both the coastal States and the land-locked ones, are concerned by the enhancement of maritime safety and pollution prevention standards. Indeed higher standards do not exclusively mean cleaner seas and coasts, but also safer navigation and a reduced risk of the loss of ships, cargo and human lives.
So far, all Member States have acted independently in applying the existing Community legislation, with the Commission monitoring the proper transposition of Community legislation into the national legal systems. The Community dimension of the problem requires a more uniform approach from a practical point of view.
Is the envisaged action solely the responsibility of the Community or is the responsibility shared with the Member States-
The Agency will deal with matters of Community competence since it will assist in the implementation of Community legislation.
What is the most efficient solution taking into account the resources of the Community and the Member States-
Taking into consideration the features of the Community maritime safety policy and the need to ensure its uniform application, an action at Community level is the only possible way to guarantee the same level of safety and marine pollution prevention throughout the Union.
What is the concrete added value of the action envisaged by the Community and what would be the cost of inaction-
The Agency will greatly contribute to the proper application of Community legislation across the Union, to developing and disseminating 'best practices' among the Member States and to enhancing the overall Community maritime safety and pollution prevention system. This in turn will reduce the risk of maritime accidents, of marine pollution and of the loss of human lives at sea.
Furthermore, a proper and uniform implementation of the existing legislation will ensure a level playing field, reduce the distortion of competition resulting from the economic advantages enjoyed by non-complying ships and will reward the serious maritime players.
It is very difficult to quantify the cost of inaction. Quantifying it would mean, first of all, providing an answer to the question of how many accidents the Agency will prevent. However, it can be stated that if the Agency succeeded in preventing even one major accident - such as the sinking of the ERIKA which caused damages valued at 400 million euros - it will have more than merited its cost.
What forms of actions are available to the Community- (recommendation, financial assistance, regulation, mutual recognition).
Given the objective of the measure, a Regulation is the only possible tool to achieve it. Uniformity and efficiency in the application of Community maritime safety and pollution prevention legislation would not be achieved by a less constraining legislative instrument. A Regulation is the legislative instrument generally used to establish an Agency in the Community.
Is uniform legislation necessary or would a Directive, setting the general objectives and leaving the execution to the Member States, suffice-
As stated in the previous point, the choice of type of legislation is dictated by the very objective of the measure.
Chapter I - Objectives and tasks
Article 1
This article specifies that the need to establish a European Maritime Safety Agency is due to the fact that it is necessary to ensure a high, uniform and effective level of maritime safety and pollution prevention in the Community. Furthermore, this article clarifies that the Agency must represent a technical and scientific support for the Member States and for the Commission to properly apply Community legislation in the field of maritime safety, monitor its implementation and evaluate the effectiveness of the measures in place.
1. This is the core article defining the tasks which the Agency has to carry out in order to fully achieve the objectives set out in the previous article.
a) The tasks of the Agency shall consist of monitoring the continuous development of international maritime safety legislation and of carrying out an in-depth analysis of research projects carried out in the field of maritime safety and protection of the marine environment. On the basis of these two activities, or on the basis of its own expertise, the Agency shall draw the attention of the Commission to the possibility of updating Community legislation, - taking into account the need to ensure that such legislation remains effective.
b) In order to monitor the overall functioning of the Community Port State Control regime, the Agency shall carry out visits to the Member States aimed at examining the way in which Member States implement their PSC obligations. These visits will be extremely useful to develop 'best practices' and later on to disseminate them throughout the Community. On the basis of the experience gained, both by the visits to the Member States and through the overall monitoring of the Community PSC regime, the Agency will suggest to the Commission possible improvements to the regime. The Agency will also put its experience at the disposal of the Commission and participate in the workings of the technical bodies of the Paris Memorandum of Understanding on Port State Control.
Ensuring a high level of performance of the classification societies recognised at Community level implies two tasks: carrying out inspections of such organisations, to monitor their fulfilment of the provisions of Council Directive 94/57/EC, and helping to continuously monitor their safety and pollution prevention performance. With both tasks, the Agency shall provide support to the Commission and the Member States.
The Agency shall assist the Commission and the Member States in ensuring the proper implementation of all the remaining Community maritime safety legislation, particularly in the fields of safety of passenger ships and marine equipment, and including Community legislation applicable to crews.
c) The availability of objective, reliable and comparable information and data on maritime safety and pollution is the key element enabling the Commission and the Member States to take the necessary steps to enhance the existing measures and to evaluate their effectiveness. A number of databases already exist in this field, others will have to be developed. The Agency shall organise a coherent work programme, including the cross fertilisation of existing databases, in order to provide the Community with the information and data mentioned above, whilst avoiding any duplication of existing activities. On the basis of the data collected, the Agency will assist the Commission in the publication, every six months, of information relating to ships that have been refused access to Community ports in application of the provisions of the Directive on Port State Control. On that basis, the Agency will also assist the Commission and the Member States in their activities to improve the identification and pursuit of ships which make unlawful discharges.
d) The Agency shall assist the Commission and the Member States in the field of the surveillance of navigation and maritime traffic. In this respect the Agency shall facilitate co-operation between the Member States and the Commission as provided for in the Community legislation on the European maritime traffic reporting system.
e) The Council of Transport Ministers of 26 June 2000 requested the Commission to consider developing, when appropriate, a European database on accidents and incidents at sea, as an important tool to prevent future accidents and for devising new initiatives based on formal safety assessments. The Agency is entrusted with this task, as well as designing a common methodology for investigating maritime accidents within the Community. On the basis of the experience gained, the Agency will offer its support to the Member States in the activities concerning the investigations related to serious maritime casualties in EU waters. Another important activity of the Agency in this field shall be that of analysing existing accident investigation reports in order to learn how to avoid similar events in the future and to disseminate the results of its analysis.
f) The Agency has an active role in the convergent and effective implementation of Community maritime safety legislation throughout the Community. It shall organise appropriate training activities on port and flag State related issues, since training is considered to be the first element towards a harmonised Community system.
g) The Agency shall provide technical assistance for those States applying for accession with respect to their implementation of Community legislation in the field of maritime safety. In this context, the Agency shall contribute to explaining the systems in place in the Community for the implementation of the maritime safety legislation and disseminate the Community's 'best practices'. However, the Agency is not supposed to carry out practical activities in the States applying for accession, such as providing personnel to carry out tasks aimed at restructuring the existing maritime administrations of these countries, but shall simply provide theoretical support. Finally, the Agency shall organise appropriate training activities for these States.
2. In order to ensure that the technical and scientific knowledge of the Agency is put at the disposal of the Community, for the control of the implementation of Community legislation by Member States and whenever it is needed for activities not specifically foreseen in its work programme, the Agency is requested to carry out any specific task only at the request of the Commission. The Agency cannot be entrusted with any tasks at the request of a Member State.
In order to achieve the objectives of the Regulation and to accomplish its tasks in the best possible way, the Agency shall carry out visits to the Member States. These visits will focus on the implementation of the Member State's Port State Control obligations but also on other aspects linked to the implementation of the Community maritime safety and pollution prevention legislation. These visits will help the Agency to understand the functioning of the maritime administrations of the Member States, to highlight possible shortcomings of the Community system as well as 'best practices' implemented by the Member States. On the basis of the experience gained, the Agency will be able to suggest possible improvements to the overall system and, in a second stage, to disseminate the 'best practices'. The Commission will analyse the reports produced by the Agency following each visit in order to decide whether any follow-up measures are necessary.
Since the Agency is entrusted to develop and exploit databases and since certain data may be of a personal nature, it is important to specify that the information collected within the framework of the application of this Regulation by the Commission and the Agency shall be subject to Directive 95/46/EC of the Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data i.
Article 5
This article specifies that the Agency is an independent body of the Community. The competent authorities will have to decide its location at the latest six months after the adoption of the Regulation, on the basis of a proposal from the Commission. Furthermore, it is specified that the Agency, following a specific request from the Commission, may decide to establish regional centres in some Member States in order to carry out tasks linked to the surveillance of navigation and maritime traffic, and particularly to ensure the best traffic conditions in sensitive zones, as foreseen in the Community legislation on the European maritime traffic reporting system.
The Staff Regulations of the Community institutions will also apply to the staff of the Agency. It is envisaged that only a small number of these will be seconded from the Community institutions on a temporary basis. The other personnel will be recruited on the basis of experience and merit from national administrations or from industry on a temporary basis.
This provision stipulates that, like the European Communities, the Agency should also benefit from the same privileges and immunities as set out in the Protocol on the Privileges and Immunities of the European Communities.
The regime of contractual and non-contractual liability of the Agency corresponds to the regime applicable to the Community by virtue of Article 288 of the Treaty.
The Administrative Board of the Agency is entrusted to take a decision on the language regime of the Agency. The language regime should allow the Agency to work in an efficient and swift manner.
This article lays down the powers of the Administrative Board, which forms part of the management bodies of the Agency. It has a supervisory function in appointing the Executive Director, in adopting the annual report, the work programme - after approval by the Commission - and in taking budgetary decisions. Moreover, it shall ensure that the Agency works with the necessary transparency and neutrality and shall adopt, therefore, procedures on how the Executive Director may take decisions.
This provision specifies that the Administrative Board will be composed of four representatives of the Commission, four representatives of the Council, four representatives nominated by the European Parliament and four representatives from the industry nominated by the Commission.
This article specifies that the Administrative Board will elect its Chairman and Deputy Chairman from among its members.
This article provides for ordinary, as well as extraordinary, meetings of the Administrative Board, which must be attended by the Executive Director, and may be attended by outside observers. The Executive Director shall not have the right to vote.
A two third majority will be required for decisions of the Administrative Board, with each member having one vote.
This provision sets out the functions and powers of the Executive Director, who shall not accept any instructions from any government or any other organisation. However, he will have to follow up any instruction or request for assistance formulated by the Commission in relation to the tasks set out in Article 2. The Executive Director is also the manager of the Agency and is therefore responsible for the preparation and execution of the budget and of the working programme, as well as for all questions related to personnel.
The Executive Director, together with one or more Heads of Unit, are appointed by the Administrative Board which exercises disciplinary authority on them. The appointment of the Executive Director is made for a limited, renewable period.
Member States and natural or legal persons shall have the possibility to appeal against any act of the Agency which is of direct and individual concern to them. Therefore any act carried out by the Executive Director and by the Administrative Board may be referred to the Commission in order to examine the legality of that act.
This article stipulates that the Agency shall be open to the participation of European countries, which have entered into agreements with the European Community whereby they have adopted and are applying the Community law in the field covered by this regulation.
Article 19
The Agency's budget will be mainly financed by a subsidy from the Community. Services that it provides (such as publications, training or others) may be paid for in the form of fees.
The Agency requires a sufficient budget allocation to hire its personnel, as described above, to carry out its tasks and to ensure it functions smoothly and efficiently.
The Executive-Director will establish a preliminary draft budget to be adopted by the Board and then forwarded to the Commission, which will in turn process it in accordance with standard budgetary procedures. Article 279 of the EC Treaty applies.
This article specifies that the Executive Director will be responsible for the implementation of the budget. Financial control will be ensured by the Financial Controller of the Commission. The Court of Auditors will examine the Agency accounts and publish an annual report. The discharge of the Agency budget will be given by the Administrative Board to the Executive Director on the recommendation of the European Parliament.
This article provides that within five years from the date the Agency has taken up its responsibilities, the Agency in collaboration with the Commission shall carry out an independent evaluation on the implementation of this Regulation. On the basis of the findings of this evaluation, the Administrative Board will issue recommendations regarding changes to this regulation, the Agency and its working practices to the Commission.
This article specifies that, for the purpose of guiding the Agency in preparing and implementing the budget, a Financial regulation will be adopted by the Administrative Board following the agreement of the Commission and the opinion of the Court of Auditors.
Article 23
This article specifies that, while the Regulation enters into force according to Article 24, the Agency will only be operational 12 months later. This will provide sufficient time for its establishment.
This article lays down the date when the Regulation enters into force.
A financial statement is attached to this proposal. An impact assessment form has not been attached since the proposal does not affect businesses.